The Laws of Nature and of Nature’s God:
The True Foundation of American Law
by Kerry L. Morgan
THE BASIS OF REPUBLICAN GOVERNMENT
The Declaration notes that “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” The Bible recognizes that civil government is “instituted among men” and its purpose thus instituted is to exercise its power under the authority of God’s laws. Its authority is defined and power is limited by that law. The authority of civil government can be summarized as the right to “punish those who do wrong and to commend those who do right.”44 It follows that when those who do wrong are punished, then those who exercise their unalienable rights may do so without further interference. Punishing those who do wrong protects those who do right, or in other words, punishment of those lawfully convicted of crime, secures freedom.
The Declaration says that civil governments are instituted to secure our unalienable God-given rights. Civil governments protect those who do right, and the exercise of God-given rights is always right. Consequently, the Declaration reflects a legal principle of biblical origin. This relationship is not a perfect match, but a concrete nexus exists. In essence, God gives rights and civil government secures rights. Rights are secured when they are protected from interference or denial. It is wrong to deny another his God-given rights. Punishment of those who interfere or deny another their rights serves to promote freedom.
President George Washington declared that, “The basis of our political systems is the right of the people to make and to alter their constitutions of government.”45 Abraham Lincoln called this “the leading principle – the sheet anchor of American republicanism.”46 This principle requires that civil government exercise only those powers which are specifically granted and is found throughout the Constitution. The Preamble asserts that “We the People, of the United States, . . . do ordain and establish this Constitution . . .” The whole notion of constitutional government is predicated upon the requirement that people consent together to establish the form of civil government, and that political sovereignty is delegated directly to that government. Article I, Section 1 reinforces this proposition. It notes that only the legislative powers specifically “granted” by the people of the United States may be exercised by the Congress. Congress may only legislate with respect to those objects the people constitutionally extended to Congress in writing. Government by consent is also reflected in Article I, Section 9, Clauses 7 and 8, and Article I, Section 10 as noted earlier. At no time may a judicial body exercise legislative power whatsoever.
Article IV, Section 4 indicates that ” the United States shall guarantee to every State in this Union a Republican Form of Government . . .” Both the national and state governments are republican in nature. Republican means that the people’s representatives govern according to a written delegation of authority. This is in contrast to a democratic system in which the representatives govern according to the popular consent of the people, whether that consent is written or unwritten.
If the people desire any branch of the national government to engage in an activity which would require the exercise of a power not enumerated or extended, or with respect to Congress, necessary and proper to carry such a power into execution, then the people need to amend the Constitution. This will ensure that there is no mistake as to the nature, extent and type of power given, or the proper scope of its exercise, including the branch to which it has been entrusted.47
The jury trial provisions of the Sixth and Seventh Amendments reflect government by consent in the context of a judicial case or controversy. The jury literally must consent to the state proceeding against a peer, or in civil suits, by determining liability and assessing damages.
Article VII provided the specific means by which the people originally consented to be governed by the Constitution. It declares that the “Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
There are many other constitutional provisions which reflect government by consent. They include Article I, Sections 2 and 4 (congressional elections); Article II, Section 1 (Presidential elections); the Twelfth Amendment (regarding the election of the President and Vice-President); the Fifteenth Amendment (prohibiting abridgement of the vote on account of race or color, etc.); the Seventeenth Amendment (regarding popular election of Senators); the Nineteenth Amendment (regarding abridgement of the vote on account of sex); the Twenty-Second Amendment (limiting to two the terms of the President); the Twenty-Fourth Amendment (prohibiting a poll or other tax on voting); and the Twenty-Sixth Amendment (granting eighteen-year olds the right to vote). All these concern or protect the process by which the consent of the governed is made manifest. Article V, which outlines the amendment process, is also built upon that principle.
The Declaration of Independence acknowledges another unalienable right – the right to alter or abolish the form of government. It asserts
that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
The phrase “destructive of these Ends” refers to the unalienable rights which civil government is instituted to preserve. It was the right to alter or abolish the form of government which the people exercised when independence was declared. The nature of this right presumes that it is not to be exercised lightly. If wrongly employed, it may constitute treason, defined by Article III, Section 3.
The framers declared that the people were free to organize the powers of government in whatever form they considered would secure their liberty. Accordingly, the people took steps to exercise their right and abolished the monarchial form of government because it was destroying their liberty. The framers recognized in the Declaration that “such has been the patient Sufferance of these Colonies.” They noted that in “every stage of these Oppressions we have Petitioned for Redress in the most humble Terms.” Petitioning, however, was not a sufficient remedy for the people, for
when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.
In other words, the people will right themselves, but not for light and transient causes.
Article V is an excellent example of the rule regarding alteration or abolition of the national form of government. Through amendments, the people can establish a more perfect government of the United States, that is, render it better able to accomplish its purposes.
Many of the founders recognized that slavery, as practiced in the United States at the time of independence, was an affront to the principles acknowledged in the Declaration. During the Constitutional Convention, the delegates could not arrive at a consensus completely conforming the constitution to the principle of equality in this context. Abraham Lincoln noted that the spirit of the founders toward the principle of slavery, “was hostility to the principle, and toleration, only by necessity.”48 Article I, Section 9, Clause 1 contemplated a move toward conformity to the Declaration principle, by permitting Congress to impose taxes upon the slave trade and to abolish it altogether after 1808.
In the period preceding the Civil War, many persons, led by orators such as Steven Douglas and jurists such as Chief Justice Roger Taney, separated the interpretation and implementation of the Constitution with regard to slavery from the principles of the Declaration of Independence. By making this separation, these men attempted to transform a tolerated evil soon to expire into a positive right. This is the essence of the Supreme Court’s holding in Dred Scott.49 Chief Justice Taney wrongly concluded that because the practice of some of the Declaration’s framers was slavery, their practices rather than the standard of equality, should govern. While it is always proper to consider the factual situation existing at the founding, it is the immutable rule of law which controls, not the sometimes inconsistent practices of men.
The Thirteenth, Fourteenth and Fifteenth Amendments, however, changed this practice. The Thirteenth Amendment, abolishing slavery, finds its justification in the Declaration’s principle “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among theses are Life, Liberty and the Pursuit of Happiness.”
The Fourteenth Amendment, Section 1 further reflects the principles of equality and unalienable rights by acknowledging that men, created equal, are entitled to enjoy the equal protection of the law and share equally in the privileges and duties of citizenship. In addition, state governments were barred as a matter of constitutional law from denying due process of law to their citizens.
The Fifteenth Amendment, which extended the vote to non-whites and former slaves, drew its justification from the principles of government by consent. This Amendment assured that Blacks could also share in the making of the law by which all would be equally judged. Though the analogy is less than complete, this same principle is found in the Nineteenth Amendment granting women the right to vote.
Lastly, the Declaration asserts that the people are responsible for instituting new government, “laying its Foundation on such Principles, and organizing its Powers in such form as to them shall seem most likely to effect their Safety and Happiness.”
The representatives in the First Continental Congress organized the powers of the new national government in 1774 under the “Articles of Association.”50 In 1777 this organization took on a different character. Drafted by John Dickinson, then a delegate from Pennsylvania who voted against the Declaration of Independence, the “Articles of Confederation and Perpetual Union” were put forward.51 According to President John Quincy Adams, however, “there was no congeniality of principle between the Declaration of Independence and the Articles of Confederation.”52 The confederation’s powers were organized in such a way as to undermine rather than “to provide new Guards for their future Security.”53 Adams declared that the “fabric of the Declaration and that of the Confederation . . . were the products of different minds and adverse passions.”54 In an effort to revise the Articles of Confederation, a convention was called. More than revision, however, took place. Within four months the framers had written a national Constitution in order to secure the safety and virtue of the people in a more perfect union.
They achieved this compatibility by first abolishing the monarchial form of government and instituting in its place a republican one. Reflecting on a republican form, James Madison wrote:
It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.55
Beyond this, the framers subsequently set out to alter their system of government in two ways. First, with respect to the national government, they separated its power into executive, legislative and judicial branches. Noting that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny,”56 the founders made each branch separate and distinct, with few exceptions. For instance, the President’s veto power noted in Article I, Section 7 extends to the Executive a check on legislative authority. The Senate, as a check on the other branches, is granted authority to try impeachments according to Article I, Section 3. This includes impeachment of judicial officers as noted by Alexander Hamilton in Federalist No. 81.
The three separate branches are also independent of one another. Madison said:
If it be a fundamental principle of free Government that the Legislative, Executive & Judiciary powers should be separately exercised, it is equally so that they be independently exercised.57
If one national branch did exercise another’s power, it would not be according to the Constitution, but by usurpation.
Second, the framers divided civil power between the states and the national government. The jurisdiction of the national component of the federal system “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”58 The states do not exercise national power, and the national government does not exercise state power. Each government exercises only those powers granted in their respective constitutions.
Article I, Section 8 lists most of the powers that have been granted to the national legislature. The Tenth Amendment affirms the division of powers between the state and national government by declaring, “the powers not delegated to the United States by the Constitution nor prohibiting it to the States, are reserved to the States respectively, or to the people.” This division reflects an underlying commitment to self-government as well as reaffirming that the national government has only a few powers best handled by the people as one nation. The vast bulk of civil power rests constitutionally with the people acting through state and local governments according to state constitutions, and in their capacity as individual citizens.
* Copyright © 1990, 2006 Kerry L. Morgan. Used with permission.
44. I Peter 2:13, Romans 13:3-4.
45. George Washington, “Farewell Address,” quoted in James D. Richardson, ed., Messages and Papers of the Presidents, 1789-1897. (Washington, D.C.: Government Printing Office, 1896), 1:217.
46. Roy P. Basler, ed., The Collected Works of Abraham Lincoln. (New Brunswick: Rutgers University Press, 1953), 2:266.
47. James Monroe, “First Annual Message,” quoted in Richardson, Messages, supra note 45, 2:181.
48. Basler, Lincoln, supra note 46 at 2:275.
49. Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857).
50. The Association of the Continental Congress, October 20, 1774. As printed in Documents of American History, vol. I, Henry Steele Commanger, ed., (Englewood, N.J.: Prentice-Hall, 1973), p. 84.
51. Adams, Discourse, supra note 23, at 17.
55. James Madison, The Federalist Papers, No. 39. (New York: The New American Library, Inc., 1961), p. 240.
56. Madison, Federalist No. 47, supra note 55 at 301.
57. James Madison, Notes of Debates in the Federal Convention of 1787. (Athens: Ohio University Press, 1966), p. 326.
58. Madison, Federalist No. 39, supra note 55.